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Entries by Bruce Freeman

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CERTAIN LABOR LAW 200, COMMON LAW NEGLIGENCE, AND LABOR LAW 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED; QUESTION OF FACT RE: WHETHER PLAINTIFF WAS THE SOLE CAUSE OF THE ACCIDENT IN THIS LADDER-FALL CASE; THE PROJECT COORDINATOR MET SEVERAL DEFINITIONS OF ‘OWNER’ WITHIN THE MEANING OF LABOR LAW 240(1), INCLUDING AS THE HOLDER OF AN EQUITABLE INTEREST IN THE PROPERTY (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined common law negligence and Labor Law 200 causes of action should have been dismissed re: several defendants because of the absence of supervisory control, several of the Labor Law 241(6) causes of action should have been dismissed because the Industrial Code provisions did […]

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DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A DETERMINATION WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS (FOURTH DEPT).

The Fourth Department, reserving decision on the appeal and remitting the matter, determined County Court should have ruled on whether defendant should be afforded youthful offender status: Pursuant to CPL 720.10 (2) (a) (ii) and (3), because defendant was convicted of an armed felony offense (see CPL 1.20 [41]), he is ineligible for a youthful offender […]

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DEFENDANT IN THIS INTERSECTION TRAFFIC ACCIDENT HAD THE RIGHT OF WAY WHEN THE TRUCK IN WHICH PLAINTIFF WAS A PASSENGER APPARENTLY FAILED TO YIELD THE RIGHT OF WAY AND PULLED INTO DEFENDANT’S PATH; THE MAJORITY HELD THERE WAS A QUESTION OF FACT WHETHER DEFENDANT SAW WHAT SHE SHOULD HAVE SEEN; THE DISSENTERS ARGUED DEFENDANT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined plaintiff was not entitled to summary judgment in this intersection traffic accident case. Plaintiff was a passenger in a truck which apparently failed to yield the right of way and pulled into the path of defendant’s car. The majority held there was a question of fact whether defendant […]

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PLAINTIFF PRESENTED CLEAR AND CONVINCING EVIDENCE SUPPORTING THE CAUSES OF ACTION AGAINST A NEIGHBOR FOR TRESPASS, PRIVATE NUISANCE, AND VIOLATION OF THE CIVIL RIGHTS LAW; THE MOTION FOR A PRELIMINARY INJUNCTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for a preliminary injunction in this dispute between neighbors should have been granted. Plaintiff alleged the neighbor repeatedly damaged and defaced plaintiff’s property and installed a surveillance camera aimed at plaintiff’s property. The Fourth Department went through the elements required for issuance of a preliminary injunction […]

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ALTHOUGH SECONDARY EVIDENCE (HEARSAY TESTIMONY) AND EXTRINSIC DOCUMENTARY EVIDENCE ARE NOT ADMISSIBLE FOR COLLATERAL MATTERS LIKE IMPEACHING CREDIBILITY, SUCH EVIDENCE IS ADMISSIBLE WHEN IT IS RELEVANT TO A CORE ISSUE; HERE THE CONTENTS OF A NOTE PRESENTED TO A BANK EMPLOYEE WAS RELEVANT TO THE ‘THREATENED USE OF FORCE ‘ ELEMENT OF ROBBERY (FOURTH DEPT).

The Fourth Department, reversing defendant’s robbery conviction and ordering a new trial on that count, determined the defendant should have been allowed to present a witness to demonstrate the note he presented to the bank employee did not threaten the use of force (an element of the robbery charge). The Fourth Department noted that secondary […]

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FAMILY COURT SHOULD NOT HAVE AWARDED CUSTODY OF THE CHILDREN TO A NONPARENT WITHOUT FIRST MAKING A FINDING WHETHER EXTRAORDINARY CIRCUMSTANCES EXISTED; THE ISSUE WAS NOT PRESERVED, APPEAL HEARD IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court did not make the required initial finding of extraordinary circumstances before awarding custody of the children to a nonparent. Although the issue was not preserved, it was heard in the interest of justice: ” [A]s between a parent and a nonparent, the parent has a superior […]

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THE INITIAL PROSECUTOR IN DEFENDANT’S CASE BECAME THE TRIAL JUDGE’S LAW CLERK; DEFENDANT WAS NOT INFORMED AND WAIVED HIS RIGHT TO A JURY TRIAL; THE WAIVER WAS NOT ‘KNOWINGLY’ AND ‘INTELLIGENTLY’ MADE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction after a bench trial should have been granted. The initial prosecutor in defendant’s case became the trial judge’s law clerk. Defendant was never informed and waived his right to a jury trial. Defendant argued he would not have waived a jury trial […]

COUNTY COURT MISAPPREHENDED THE LAW WHEN IT AFFIRMED TOWN COURT’S ORDER TO EUTHANIZE RESPONDENT’S DOG; MATTER REMITTED TO TOWN COURT (FOURTH DEPT).

The Fourth Department, reversing County Court and remitting the matter to Town Court, determined County Court misapprehended the applicable law in affirming Town Court’s finding that respondent’s dog (Brady) is a dangerous dog and directing the dog be euthanized pursuant to the Agricultural and Markets Law: … [T]he court repeatedly misstated the applicable law. Before the hearing […]

DEFENDANT’S SENTENCE FOR MANSLAUGHTER REDUCED BASED UPON DEFENDANT’S BACKGROUND, REMORSE AND LACK OF A CRIMINAL HISTORY (FOURTH DEPT).

The Fourth Department reduced defendant’s sentence for manslaughter based upon his background, remorse, and lack of a criminal history: … [T]he 24-year determinate sentence is unduly harsh and severe considering, inter alia, defendant’s background, genuine show of remorse, and lack of prior criminal history. Thus, we modify the judgment as a matter of discretion in […]

THE PROSPECTIVE JUROR AND A PROSECUTION WITNESS WERE FRIENDS; DEFENDANT’S FOR CAUSE CHALLENGE TO THE JUROR SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that defendant’s for cause challenge to a juror should have been granted. The juror and a prosecution witness were friends: … [T]he prospective juror gave “some indication of bias” … by stating that her friendship with a prosecution witness “might” “affect [her] ability […]

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